Five year rule for WA exploration licences overturned

There is no "five year requirement" for the section 58 statements that need to be filed with exploration licence applications, following the important and awaited decision in Richmond v Warden Thomas McPhee [2025] WASC 387. This decision by the WA Supreme Court effectively overrules the views expressed by the Warden's Court since 2022.

How the five year requirement was imposed – and its consequences

The Western Australian mining industry has faced substantial uncertainty, and a vast number of exploration licence applications have been in limbo, since the Warden’s Court decision in True Fella Pty Ltd v Pantoro South Pty Ltd [2022] WAMW 19 was delivered in August 2022.

The Warden's Court in that case (and those that followed) applied a strict interpretation of the asserted requirements in section 58 of the Mining Act 1978 (WA) for a statement that must accompany an application for an exploration licence. In particular, the Warden's Court determined in those decisions that a section 58 statement that did not include a work programme and budget for the full five years of the term of the licence invalidated the application.

The consequences of that line of authority have been significant and include that:

• applications for exploration licences that would have previously been found to be compliant have been rejected, and applicants for those exploration licences have potentially missed out on, and lost priority in relation to, key tenure;

• WA miners had been forced to re-consider the way in which they prepare section 58 statements when they apply for exploration licences; and

• a significant number of contested exploration licence applications in the Warden’s Court have been stayed for a considerable period.

In December 2023, a judicial review of two decisions in the Warden’s Court (William Robert Richmond v Regis Resources Limited [No.2] [2023] WAMW 23 and [No.3] [2023] WAMW 44) challenged the True Fella line of authority in relation to section 58 statements. The Western Australian mining industry has waited patiently for the outcome of that judicial review to be known.

The Supreme Court’s key findings in Richmond

The Warden's Court held it did not have jurisdiction to hear the Richmond applications on the basis that the applicant's section 58 statement was non-compliant. In the Richmond decision, delivered on 19 September, the WA Supreme Court found that a jurisdictional error arose from this finding.

Importantly, contrary to the position adopted in the True Fella line of authority, the Court found that there is no requirement in section 58 of the Mining Act that the "details of the programme of work proposed to be carried out' and the 'estimated amount of money proposed to be expended' be specified for the full five year term of the exploration licence". [emphasis added]

It came to this conclusion on a number of bases, which include that

• there is no express reference to the relevant information needing to be specified for a period of 5 years. The focus of section 58(1)(b) is on information concerning the area of land the subject of the application as opposed to any period of time; and

• a five year requirement would be inconsistent with the uncertainty and unpredictability inherent in the underlying exploration activities and the lack of a requirement that a holder retain an exploration licence for the full 5 year term.

The Supreme Court also went on to find that as a matter of principle, section 58(1)(b)(ii) and (iii) do not preclude a proposed programme of works (and associated estimate of expenditure) consisting of an initial stage (or stages), with subsequent stages of work being dependent or contingent on the results of those initial stages.

The remaining uncertainty over section 58 statements

While the Supreme Court has overturned the strict 'five year requirement' applied by the Wardens since the True Fella decision, there will no doubt be new arguments advanced by objectors with respect to the potential non-compliance of section 58 statements.

For instance, the Supreme Court confirmed that there is still a requirement that the applicant "specify" with some degree of certainty or detail the proposed programme of works and budget.

By way of further example, the Supreme Court also dealt with the requirement that a section 58 statement must specify the technical resources available to the applicant and issues are likely to arise as to the extent to which an applicant has detailed how the technical resources are available to it, rather than just being available at large.

Relatedly, the industry will continue to watch the progress of the Mining Amendment Bill 2025. Amongst other things, the Bill proposes to amend the section 58 requirements and allow an application lodged before the commencement of the Amendment Bill (if passed) to be granted, even if it does not comply with all prescribed requirements. That would reduce the continuing impact which the High Court's well-known decision in Forrest & Forrest v Wilson [2017] HCA 30 will have in the process for applying for mining tenure.